Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Baroness Lister of Burtersett

Lords Hansard - Part 1 & Report stage
Wednesday 2nd March 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

Just before the noble Lord sits down, can he say whether there will be any consultation on the guidance? Can someone write to me on that point?

[Lord Wolfson of Tredegar (Con)]

My Lords, I do not have the detail at my fingertips, but I can certainly undertake to write to the noble Baroness. I was just about to sit down after inviting the noble Baroness, Lady Coussins, to withdraw the amendment for the reasons that I have set out.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Baroness Lister of Burtersett

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

I am not a lawyer, so I rise with some trepidation, but it seems to me that it suits the Government’s purpose to interpret it in this way, because it means that fewer vulnerable groups—particularly women—fleeing violence will receive refugee protection as a result. It is no clearer than the interpretation that it is overruling, and it seems odd. It is quite rare for the Government to pray in aid an EU interpretation over that of their own courts. Maybe one of the lawyers opposite will be able to give a better response than I can, but I am afraid I am not convinced, because it seems as though that is why this is being done—it is nothing to do with clarity. If this legislation had clearly put in law Lord Bingham’s interpretation, that would be clear. So why the EU interpretation, which is, as numbers of authorities have said, likely to mean fewer vulnerable people—particularly women—receiving the refugee protection to which they are entitled under the convention?

[Lord Wolfson of Tredegar (Con)]

My Lords, I set out why we think this interpretation is correct. I am certainly not saying that we are using this interpretation because it is the EU one; I was referring to the EU to make the point that, with respect, it is very difficult to challenge this as somehow an unfair, unworkable or inapt interpretation when it is actually reflected in the EU jurisprudence. I absolutely take, with respect, the noble Baroness’s comments about the importance of the equality impact assessment for the policies being taken forward through the Bill. The public sector equality duty is not a one-off duty; it is ongoing, and I want to provide reassurance now that we will be monitoring equality impacts as we put the Bill into operation and as we evaluate its measures and, indeed, those in the wider new plan for immigration.

I assure the right reverend Prelate the Bishop of Gloucester that we are well aware of the particular issues facing women and survivors of gender-based persecution and, indeed, the asylum system is sensitive to them. The interview guidance contains clear instructions to interviewers in this area. We seek to offer a safe and supportive environment for individuals to establish their claims. Despite references to the decision of this House in its judicial capacity, in Fornah, those comments were obiter. I underline that there is no authoritative definition in case law of what is a “particular social group”, and that is why it is absolutely right for this Parliament to define it in this clause.

Clause 37 amends the definition of a “particularly serious crime” from one which is punished by imprisonment of two years or more to one which is punished by imprisonment of 12 months or more. To be clear, imprisonment means an immediate custodial sentence—I am not sure that any noble Lord made that point, but it is important. Indeed, it is why I brought the handbook: if you receive a suspended sentence, you are not caught by its provisions—going back to the underlying legislation. Furthermore, not only does it have to be an immediate custodial sentence of 12 months or more but the second limb has to apply—namely, whether the individual is a danger to the community—and that is rebuttable.

We cannot accept Amendment 111 because it would potentially allow dangerous foreign national offenders to remain here, putting the public at risk. If somebody has been sentenced to a year or more in prison, we should not enable them to second guess the verdict of the jury or the decision of the court by allowing them to bring into play again whether they were such an offender. We seek to allow only the second bit of it to be rebuttable; namely, whether they pose the relevant danger.

I think I have answered all the questions that have been asked. On the last point put by the noble Lord, Lord Rosser, at the heart of this lies not some dinner party conversation but a lack of clarity in the current case law and standards, which make it harder for decision-makers to make accurate and efficient decisions; that is it.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am surprised that anyone in a democracy is troubled by a Government listening to the people and putting forward legislation which, first, delivers on a manifesto commitment, and, secondly—as I have said and I repeat —is entirely consistent with our international law obligations. There is nothing wrong and everything right with each signatory to the refugee convention interpreting its obligations under it; we have now been around that point on several occasions.

[Baroness Lister of Burtersett (Lab)]

I am sorry to keep bobbing up, and I appreciate what the Minister said about monitoring the equality impact of this legislation, but does he accept that Clause 32 means that a woman fleeing gender-based violence with good grounds for being accepted as a refugee is less likely to be so accepted? I do not believe that that is what the British people voted for.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not trying to be difficult here. What it means is that a woman, like anybody else, who has a proper claim under the refugee convention will find refuge in the UK. That is what we are seeking to do. By having a clearer set of definitions, we are trying to make sure that it will not depend on the happenstance of who the decision-maker is and the way the test is applied.

Nationality and Borders Bill

Debate between Lord Wolfson of Tredegar and Baroness Lister of Burtersett

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I think I was asked a similar question, in a different context, on the police Bill. I will give the same answer, not least because I am conscious that a lot of these provisions are actually Home Office provisions. I can assure the noble and learned Lord that I will write to him with the answer to that question, so that when this matter comes back he will be in possession of the answer—rather than make an educated guess, which might turn out to be slightly inaccurate, from the Dispatch Box. I hope that is sufficient.

[Baroness Lister of Burtersett (Lab)]

My Lords, on that very important point, perhaps the Minister will take back to the Home Office that this Committee would very much like the guidance to be published in draft form in good time so that Members of the House and others can look at it.

[Lord Paddick (LD)]

I am sorry for interrupting, but I am becoming a little confused again, I am afraid, probably because we have been at this for a very long time and it is very late and so forth. Is the Minister saying that the deadline that is set for the submission of evidence will be set on a case-by-case basis, for example, if the applicant is particularly vulnerable? If vulnerabilities come to notice that were not initially brought to the notice of the decision-maker, will the deadline then be adjusted and perhaps extended as a consequence of that? Although there might be general guidance about what the deadline might be in every case, is it movable and adjustable in every case and might it be adjusted further as the case progresses? In which case, why on earth is this part of the Bill?

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[Lord Wolfson of Tredegar (Con)]

There are a number of ways of skinning this particular cat because there are separate amendments but common themes. If when I am about to sit down, I have not dealt with it fully, I am sure the noble Baroness will intervene, but I will try to come to Clause 25 head on.

However, I was going to go next to Amendments 82A and 82B, both in the name of the noble Baroness, Lady Hamwee. Different elements of Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 have different thresholds in how they are applied to the facts of a case and how credibility is consequently damaged. Clause 18 is drafted to take this into account, so that decision-makers will take into account the relevant thresholds on a case-by-case basis. Clause 18 will encourage claimants to engage with the process in good faith and, along with the measures relating to late evidence in Clauses 17 and 25, to provide evidence in support of their claim at the earliest opportunity. As I said earlier, we think that by encouraging people to bring all their evidence upfront in protection or human rights claims, we can protect those who need protection and identify any unmeritorious claims as early as possible.

Turning to Amendment 82B, the good faith requirement is intended, as I think is obvious, to address behaviours that a deciding authority thinks are not in good faith. Where an individual who makes a protection or human rights claim exhibits a pattern of non-compliant behaviour during their dealings with immigration authorities, their credibility should be damaged to reflect that behaviour. It is also designed to stop claimants deliberately obstructing the one-stop and expedited judicial process—for example, by not taking up our enhanced legal aid offer and then making a last-minute claim based on lack of access to legal advice. The good faith requirement therefore goes further than the behaviours currently described in Section 8 of the 2004 Act. It puts beyond doubt that past behaviour that is deliberately designed to frustrate or delay proceedings should be damaging to the claimant’s credibility. We think that is right, for the reasons I have outlined.

I turn to Amendments 83 and 88, which would remove the credibility provisions in Clauses 18 and 21. For the reasons that I set out earlier, we think that it is entirely reasonable to require evidence in support of a protection of human rights claim, or a claim of being a victim of modern slavery, to be provided in a timely manner, unless there are good reasons why that is not possible.

However, I underline that a person’s credibility is not necessarily determinative of their claim under the current rules and procedures, and the Bill does not change that. Decision-makers will still be required to consider credibility in the round, as they currently do, and, where a person has raised evidence late, which causes delay and wasted resource, it is right that decision-makers consider whether there is any merit in the reasons for that lateness.

I turn now to Amendment 90A, again in the name of the noble Baroness, Lady Hamwee. We recognise that, due to an person’s individual circumstances, it may be harder for them to provide material in a timely manner. Since this is essentially an amendment to Amendment 90 in the name of the noble and learned Lord, Lord Etherton, I respectfully direct the noble Baroness to the response that I gave to the noble and learned Lord.

As I am on the noble and learned Lord’s amendments, I will now deal with Amendment 91 on reasonable grounds. It is right that, where an individual has been assessed as a priority for removal or deportation, they should avail themselves of the associated legal aid advice offer and provide any matters listed within Clause 19(3)(a) before the cut-off date and they should provide reasons for lateness where a late claim is raised, under subsection (7).

Decision-makers cannot reasonably be expected to speculate on or investigate why an individual who has received a removal notice and associated legal aid advice offer would raise a late protection or human rights claim. If no reasons for lateness are provided, or if the reasons provided are not considered to be good reasons, it would be clear to the decision-maker that any appeal must be subject to the expedited appeals process. In answer to the noble and learned Lord, I say that the good reasons test is adequate and sufficient.

The clause already provides significant safeguards for recipients of a PRN in the form of the legal aid advice provision and the good reasons test for individuals who raise late claims. I set out earlier what those good reasons can amount to. It is a very open-ended test. Therefore, I respectfully suggest to the noble and learned Lord that the amendment is unnecessary and, indeed, would risk complicating an otherwise straightforward and, I suggest, suitable test.

I turn now to Amendment 95 in the name of the noble Baroness, Lady Coussins, but spoken to by the noble Baroness, Lady Lister. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers should have regard to the principle —I underline “principle”—that minimal weight is given to evidence that is late, following receipt of either an evidence notice or a priority removal notice, without good reason.

I will come to the thrust of Clause 25 in a second, but I will first say that this amendment would place an obligation on decision-makers, not only in the Home Office but also the judiciary, to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. That would remove the requirement that decision-makers should have regard to the principle that minimal weight should be given to the evidence. That would be the case even if the reason for lateness was wholly unconnected to the category of claim or the personal factors. No causal link between the two is set out in the amendment. I respectfully suggest that that is overly prescriptive and would tie the hands of the decision-maker. Of course, in all cases, the decision-maker can take these matters into account—

[Baroness Lister of Burtersett (Lab)]

It is not my amendment so maybe it could be worded better. The noble Lord gave great emphasis to the case-by-case basis earlier, which sounds very reasonable, and he talked about subjective factors. Has he read the recent research from the British Red Cross about women seeking asylum? It found that frequently their claims are met with disbelief and they are not treated very well at all. There is a lack of recognition of gender-based violence that they may be fleeing from, as the noble and learned Lord, Lord Etherton, talked about earlier. I suggest that the noble Lord and those responsible for this clause look at this research, because I worry about putting so much emphasis on subjective factors and the case-by-case basis.

[Lord Wolfson of Tredegar (Con)]

I think I have received the email from the Red Cross, as I think it emailed everyone. I have set up a folder for all these briefings, so I do not want to say that I have read it, but if I have been sent it I certainly have it and will read it. However, due to pressures of other business, I cannot say that I have read all the material yet.

[Baroness Lister of Burtersett (Lab)]

I absolutely understand—I do not think it was in its general briefing, but it produced a separate report last week or the week before, and it is worth looking at.

[Lord Wolfson of Tredegar (Con)]

In that case, I will certainly read it over the weekend. I know that those in the Home Office responsible for this area are obviously looking at the debate and will have picked up what the noble Baroness has said.

I was just dealing with Amendment 95, after which I will come to Clause 25 itself. I lost count of how many times the noble Baroness, Lady Chakrabarti, used the word “tawdry”. It really is not, if I may say so. We obviously disagree, and I will make no comparisons either to parking fines or international commercial litigation. At one point it seemed to me that the noble Baroness was saying that, on the one hand, this clause was terrible and, on the other, that this is what tribunals do in any event and we can trust them to do the right thing.

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Baroness Lister of Burtersett

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I know it is bad form, but perhaps I can answer in reverse order. I certainly was not saying that. Indeed, the point that I was trying to make was that I was not going to get into what an appropriate tariff would be in any case; I regard that as absolutely a matter for the trial judge. It is not helpful for trial judges or indeed anybody else for Ministers on their feet to hypothesise as to what they might think an appropriate tariff would be in a particular case. The tariff is entirely a matter for the trial judge, who will decide it in the way in which they decide tariffs in other cases of life sentences as well.

To the noble and gallant Lord—forgive me, I am not sure whether I have that right; he is proud not to be a lawyer, a point with which I sympathise—I say that we brought in this amendment as soon as we had thought about the policy and, we think, got it right. When we were thinking about this issue, there were there were a number of points in the policy that required very careful consideration. That took time and that is why it is happening now. I cannot say any more than that.

I was going to acknowledge another point made, but I think I have already responded.

[Baroness Lister of Burtersett (Lab)]

I apologise for not being here at the outset, but I have listened very carefully to what has been said and it seems to me that it would be wrong simply to steamroller this amendment through now when virtually everyone who has spoken has done so very eloquently against it. Would it be possible to take it away, talk to learned Members of this House and come back at Third Reading with something that might be more acceptable ?

[Lord Garnier (Con)]

Like the noble Baroness, Lady Lister, I, too, apologise for not being here at the outset when my noble friend Lord Hailsham began. I know that next week we are going to talk about IPPs. That subject carries with it all the problems that this subject will bring with it. We now know that IPPs went wrong and have created injustices, and that there are people who have IPPs but short tariffs well past their expiry date and who are still in prison 10 or 15 years after their sentencing. Could we not learn the lessons from the IPP problem and, in order to help us learn those lessons, postpone a decision on this clause until after we have had the IPP debate, so that together we can draw a united conclusion about how best to move forward with justice?

Police, Crime, Sentencing and Courts Bill

Debate between Lord Wolfson of Tredegar and Baroness Lister of Burtersett

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I am trying to deal with the amendments in what I hope is a logical way. At the moment, I am dealing with the amendment which provides that the sentencing court should have regard to the day of release. I am trying to explain—cogently, I hope, and with great respect—why that is not a sensible or workable proposition.

I have dealt with longer sentences; let me now deal with shorter sentences. It might be said that with a shorter sentence the court could identify the release date. I accept that it would be easier for the court to identify the day of the week on which the release would fall if the sentence is very short—let us say two, three or four weeks—and if no other sentences are involved, but the problem there is that if you bring that release date even earlier, percentage wise, that is a significant additional reduction from the sentence. I therefore suggest that these amendments are not the answer—

[Baroness Lister of Burtersett (Lab)]

The Minister may be about to come to the point I was going to make. The provisions in Amendment 211 are discretionary. If it is possible in Scotland, why is it not possible here?

[Lord Falconer of Thoroton (Lab)]

The Minister said that he was dealing with the amendments logically. He dealt with only Amendment 210 and did not deal with Amendment 211.

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[Lord Wolfson of Tredegar (Con)]

I am not suggesting it is not possible; I am asking whether it is the best way to deal with the problem. I hear “of course it is”, but I suggest that it is not. Take the example of Scotland, where they have a discretionary power. That is a model of discretion regarding early release, under the Prisoners (Control of Release) (Scotland) Act 2015. Scottish Ministers have the discretion to bring forward the release dates of people in custody by no more than two days for the purposes of benefiting a prisoner’s reintegration into the community.

A freedom of information application was made on 30 March this year to the Scottish Prison Service which showed that only 20 prisoners have been granted discretionary early release under that Act in the five years since its implementation. We are not aware of any problems with implementation. I will ask officials in my department to consult with our colleagues in the Scottish Government to explore that issue further. If I am provided with any useful relevant information as a result, I will write to the noble Baroness to provide further information on that discretionary policy. We think that the best way to deal with this matter is to put money and services in place to ensure that prisoners, whatever day they are released on, have access to the services they need.

I heard the point made by the noble Baroness, Lady Lister, about universal credit. She very fairly gave me the opportunity to reply in writing, because that matter is substantially outside my department. I also heard what the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Chakrabarti, said about that issue; I will therefore respond in writing. At the same time, I will try to pick up the point made by the noble Lord, Lord German, on bank account opening, in so far as it is relevant to the universal credit point.

We are certainly not setting people up to fail; we sincerely want them to succeed and not reoffend.

[Baroness Lister of Burtersett (Lab)]

The Minister has made a slightly better fist of it than the Government did in the Commons, but in a sense he is clutching at the same straws—his presentation is just a bit more articulate than they were in the Commons. Does he not accept that it is better, even if it is just a few people, to help a few rather than none? Is he going to be able to say how he is going to keep services open over the weekend, because that is the issue? We have heard terrible examples of people being put in fields and turning to drugs and so on because the services are simply not there. This wonderful list of all these things the Government are putting money into is great, but I have not heard anything that would explain how the Government will ensure that services are there on a Friday evening, Saturday, Sunday and bank holidays.

I am afraid the Minister has not convinced me and, given the shaking of the head behind him, I do not think he has convinced the mover of the amendment, so I really ask him to look again at this. Although, unlike the first group of amendments, we may not have taken two hours on this group, there is absolute unanimity throughout the House that we can do something practical and it will not cost money. I am sorry, I am making a speech, which I should not be.